Attorney Seamus Culhane said he was "baffled" to learn that South Dakota is one of only four states in the nation that does not have a continuing education requirement for working lawyers.
Unlike numerous other professions in South Dakota, there is no requirement for attorneys to receive ongoing training in order to maintain their licenses. There's also no way to know if working lawyers are staying up to date or improving their knowledge of the law.
"There’s things that are important in the law today that weren't even issues three years ago," said Culhane, a partner at Turbak Law Office in Watertown. "Almost every week the law changes in South Dakota, with Supreme Court decisions and legislative action, so you could have people practicing law with subpar knowledge."
SD attorneys will vote on mandatory training
Members of the State Bar of South Dakota, the professional membership group for lawyers, will soon have the opportunity to weigh in on whether to implement mandatory continuing legal education (CLE) in the state.
In 2023, the bar created a committee to study whether the state should join the 46 other states that require ongoing training. In February 2024, the bar sent a survey to its roughly 2,600 members, about 2,000 of whom are actively practicing in the state.
More than 1,100 members responded, with 47% opposed to mandatory CLE, and 53% in favor or neutral on the topic, according to a summary of the committee's work.
The committee report notes that "the lack of mandatory continuing education requirements for South Dakota attorneys may affect public perception of our Bar (association)."
The report also said mandatory education requirements align with the bar's strategic plan, which contains a goal to "foster a legal community that exemplifies professional excellence, wellbeing and civility."
The bar also states on its website that while training is voluntary, it can help attorneys in various ways.
"The State Bar of South Dakota has a long history of providing relevant CLE sessions that help members continue their legal education, hone their skills and keep up with the latest developments within particular areas of law," the website notes. "The benefits of CLE extend beyond staying up-to-date with the law. CLE seminars are a place where attorneys not only learn from excellent speakers, but from one another. This networking between attorneys, coupled with the delivery of relevant information, never ceases to provide value for members."
Emily DeCock
In February, the committee voted to recommend adoption of mandatory CLE requirements and proposed that attorneys be required to receive 20 hours of training every two years starting in 2027. The training could be taken online, and the bar association would offer free seminars in order to keep participant costs low. Attorneys would be responsible for tracking compliance with the training requirements.
On June 20, at the annual bar convention in Rapid City, members of the association will vote on the committee's recommendations. Any plan to implement mandatory CLE would still require approval from the South Dakota Supreme Court, which regulates the legal profession.
The convention agenda includes several sessions focused on providing continuing education for attorneys.
Many professions require ongoing education
According to South Dakota laws and regulations, numerous other professions require ongoing education in order to maintain a license or certification in the field.
Medical and counseling providers certified with the Department of Social Services must complete 40 hours of training every two years. Training hours are required every year or two years to maintain licensure in real estate, electrical, insurance, accounting, engineering, education, plumbing and even for cosmetology instructors.
On its website, the state bar association has a page devoted to promoting opportunities for continuing education. However, under a heading of "Upcoming CLE events," the site lists "No Results." The website does have a link to a YouTube channel with roughly a dozen videotaped discussions on the law and legal issues.
The training page includes a link to "sexual harassment prevention training for attorneys," though Culhane said that session was geared more to proper workplace behavior than toward any deeper understanding of the law.
Implementing mandatory training appears to be a touchy topic among lawyers. Several South Dakota attorneys approached by News Watch for comment on the proposal – including committee co-chairs Heather Lammers Bogard and Sarah Sharp Theophilus and two judges – did not want to comment publicly.
In Maryland, where CLE is voluntary, the Supreme Court assembled a committee in 2022 to study the issue. The following year, the committee recommended attorneys be required to undergo 12 CLE hours annually in order to remain in good standing within the bar association.
But in December, the Maryland Supreme Court delayed taking any action on the proposal, and in April, the high court postponed consideration of the proposal indefinitely without explanation.
A need for mandatory training?
Culhane, the attorney in Watertown, said some lawyers in South Dakota have likely fallen behind in their knowledge due to changes in laws, new technologies and new ways of obtaining or filing information.
Theoretically, Culhane said, someone who started practicing law 40 years ago could still be doing so without obtaining any updated legal education.
"There’s certainly opportunities to do it (CLE) on a voluntary basis, and good lawyers are doing that actively," he said. "But I worry that there’s a segment, including some older lawyers, who aren’t doing that."
Neil Fulton, who is dean of the University of South Dakota Knudson School of Law in Vermillion, said he supports mandatory CLE training. Fulton pointed out that he spoke with News Watch as a licensed attorney in South Dakota and not as a representative of USD or the Board of Regents. Fulton served on the bar's CLE committee.
"I just don't think you can practice without continuing to grow, be updated and know about legal developments," Fulton said. "We really are on the outside looking in among professions for not having continuing education in South Dakota and compared with the overall legal profession in the United States."
Fulton said he believes any opposition to mandatory CLE would be related to the potential costs of money and time, the logistical challenges posed to solo operators and whether the training is valuable and professionally presented.
"Are there some people who just don't want to do it? I'm sure there are," Fulton said. "But I think the lawyers I interact with want to be competent. They want to stay current. It's just really a question of how people weigh out the imposition of this obligation on them with the other obligations they have of work, family and all that."
In the end, however, Fulton said requiring some level of continuing education will help lawyers in South Dakota, their clients and the profession as a whole.
"I mean, you don't graduate law school knowing everything you need to know to sustain you in a career over decades," he said.
This story was produced by South Dakota News Watch, an independent, nonprofit organization. Read more stories and donate at sdnewswatch.org and sign up for an email to get stories when they're published. Contact Bart Pfankuch at bart.pfankuch@sdnewswatch.org.
